In re the Marriage of Pettus ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1655
Filed April 1, 2020
IN RE THE MARRIAGE OF KIMBERLIN PETTUS
AND CHRISTOPHER PETTUS
Upon the Petition of
KIMBERLIN PETTUS,
Petitioner-Appellant,
And Concerning
CHRISTOPHER PETTUS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for O'Brien County, Don E. Courtney,
Judge.
Kimberlin Pettus appeals from the decree dissolving her marriage.
AFFIRMED.
Thor J. Klinker of Smith, Grigg, Shea & Klinker, P.C., Primghar, for
appellant.
Matthew G. Sease of Sease & Wadding, Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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MAY, Judge.
Kimberlin Pettus appeals from the decree dissolving her marriage to
Christopher Pettus. She challenges the district court’s physical care
determination, the amount of child support awarded, and the district court’s
determination regarding attorney fees. She also seeks appellate attorney fees.
We affirm.
Kimberlin and Christopher married in 2016. The same year, Christopher
adopted Kimberlin’s child, C.P., who has special medical and educational needs.
During the marriage, the couple had two more children. They elected to open
enroll C.P. into a neighboring school district because of its strong special education
program. They also placed their younger two children in daycare in the same
community.
But eventually the couple separated. Kimberlin moved to a neighboring
town about thirty miles away. Kimberlin commenced this dissolution action.
The matter proceeded to trial. Kimberlin asked for physical care with
visitation for Christopher. Christopher asked for joint physical care. In the
alternative, Christopher requested physical care with visitation for Kimberlin.
In its decree, the district court awarded joint physical care. Kimberlin
appeals.
We review dissolution proceedings de novo. In re Marriage of McDermott,
827 N.W.2d 671, 676 (Iowa 2013). However, we afford deference to the district
court’s factual findings, “particularly when considering the credibility of witnesses,
but we are not bound by them.” In re Marriage of Fox, 559 N.W.2d 26, 28 (Iowa
1997); see also Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017).
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Kimberlin argues the district court erred in awarding the parties joint
physical care of their children.1 In assessing her claim, we consider what physical
care arrangement is in the children’s best interests. See Iowa R. App. P.
6.904(3)(o). “The objective of a physical care determination is to place the children
in the environment most likely to bring them to health, both physically and mentally,
and to social maturity.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa
2007).
Caselaw provides “a nonexclusive list of factors to be considered when
determining whether a joint physical care arrangement is in the best interests of
the child[ren].” In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007).
The factors are (1) “approximation”—what has been the historical
care giving arrangement for the child[ren] between the two parties;
(2) the ability of the spouses to communicate and show mutual
respect; (3) the degree of conflict between the parents; and (4) “the
degree to which the parents are in general agreement about their
approach to daily matters.”
Id. (quoting Hansen, 733 N.W.2d at 697–99). “The court may also consider any
other relevant factors.” In re Marriage of Monat, No. 18-0884, 2019 WL 1057310,
at *3 (Iowa Ct. App. Mar. 6, 2019).
We address each relevant factor. The approximation factor favors joint
physical care. Historically, both parties have been actively involved in the
children’s lives. They shared the child-rearing duties. Joint physical care would
best continue this arrangement.
1 Kimberlin argues the district court applied the incorrect legal standard. We agree.
The court applied the standard for a modification action, not the standard for an
initial custody and physical care determination. This was error.
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And Kimberlin and Christopher can communicate important information
regarding the children. We acknowledge Kimberlin would like Christopher to have
more open communication with her. We hope the lines of communication will
expand with time. But for now, the parties are sufficiently able to communicate
regarding critical information.
Moreover, the record shows little conflict between the parties. And
Kimberlin agreed a joint physical care arrangement could work.
The record is also absent any major differences in parenting styles.
Christopher does maintain a different sleep schedule for the children. But it is not
so drastically different that it makes joint physical care infeasible.
In addition to the four factors discussed above, we also consider special
circumstances relevant to this particular family. See Monat, 2019 WL 1057310, at
*3. We note the parties no longer live in the same town. So, under a shared
physical care arrangement, the children will be members of two communities.
Moreover, they attend school/daycare in a third community. This may complicate
future involvement in extra-curricular activities. But the children’s school/daycare
is roughly halfway in between the parties’ homes. So the children could participate
in activities in that community to ease any transportation issues.
We also note the oldest child, C.P., has unique medical needs. In the past,
she has not always disclosed her symptoms to Christopher while in his care. This
is concerning because, in one instance, she later required surgery to address the
underlying issue. As we read Christopher’s testimony, though, he appears to
understand the seriousness of C.P.’s medical needs. Moving forward, we trust he
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will provide C.P. with an environment that makes her feel comfortable to discuss
her medical conditions and symptoms with him. This will be critical to C.P.’s health.
After considering all the relevant factors, we agree with the district court that
a joint physical care arrangement is in the children’s best interests.2
Kimberlin also challenges the amount of child support awarded.
Specifically, she argues the district court under-valued Christopher’s annual
income and over-valued hers. With respect to Christopher’s income, she notes
the district court failed to consider income from Christopher’s second job as a
trucker, which he quit about three weeks prior to trial. But Christopher remains
employed full time at his primary job. And he quit his trucking job to spend more
time with the children. We do not consider this voluntary underemployment or
unemployment, which would prompt the court to impute additional earning
potential. See Iowa Ct. R. 9.11(4). So we conclude the district court did not err
when determining Christopher’s income based on his full-time job earnings.
Kimberlin also claims the district court erred in finding her income is greater
than the $15,080.00 gross annual income to which she stipulated. Instead, the
court found Kimberlin made $19,760.00 as alleged by Christopher. Kimberlin
testified she works from 8:00 a.m. to 3:15 p.m. as a para-educator during the
school year at a rate of $11.00 per hour. She also testified she recently found a
2 Kimberlin raises concerns regarding the sleeping arrangements at Christopher’s
house because a basement bedroom does not have an egress window. She also
alleges Christopher has substance-abuse issues. But we note she proposed a
physical care arrangement that would provide Christopher with two months’
visitation over the summer months. Given her proposal to leave the children with
him for two months’ time, we find Kimberlin’s concerns regarding Christopher’s
substance use and the sleeping arrangement to be minimal.
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second job working in a daycare at a rate of $10.58 per hour. She will not have a
regular schedule at the daycare; rather, she will work on an as-needed basis.
Moreover, we see no reason Kimberlin would not work during the summer
months—particularly when the children are in Christopher’s care. Given these
circumstances, the district court’s income findings were within the range of
evidence. So we do not disturb the child support award.
Next, Kimberlin argues the district court abused its discretion in not
awarding her attorney fees. A district court’s attorney fee award is reviewed for an
abuse of discretion. In re Marriage of Francis, 442 N.W.2d 59, 67 (Iowa 1989).
The award must be fair and reasonable and based on the parties’ ability to pay.
See In re Marriage of Miller, 552 N.W.2d 460, 465 (Iowa Ct. App. 1996). After
review, we find the district court did not abuse its discretion in declining to award
Kimberlin attorney fees.
Finally, we turn to Kimberlin’s request for appellate attorney fees. Appellate
attorney fees are awarded upon our discretion and are not a matter of right. See
In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). When considering
whether to exercise our discretion, “we consider ‘the needs of the party seeking
the award, the ability of the other party to pay, and the relative merits of the
appeal.’” McDermott, 827 N.W.2d at 687 (quoting Okland, 699 N.W.2d at 270).
After review, we decline to award Kimberlin appellate attorney fees.
AFFIRMED.